Wednesday, May 18, 2011

Oral arguments usually get most of the attention when cases make it to the U.S. Supreme Court, but Justice Samuel A. Alito said those arguments are a relatively small part of deciding each case. . . .

Alito delivered what he called a "top 10 list" of things people don't know about the Supreme Court. Among them is the importance of preparation and briefs compared to oral arguments.

"Oral argument is a relatively small and, truth be told, a relatively unimportant part of what we do," Alito said.

The justices often read 500 pages or more of briefs before hearing a case — 2,000 pages in one recent case, Alito said. Oral arguments typically last just an hour.

With all of that preparation, "when we do take the bench, we are really primed for the argument," Alito said. As evidence, he noted that last year, 40 percent of the words spoken in arguments before the Supreme Court were uttered by the justices, who averaged 120 questions per case — roughly two each minute.

Monday, April 4, 2011

My students want rules that give answers. When I insist that they've got to instead give me arguments about why their positions are right, they reply, "But that's just my opinion." (And I can often here an interrogative rise at the end of that sentence.) I reply, "It is your opinion, but not just your opinion. Do you think your 'opinion' is the better one? If you convince me why, you'll have not just expressed an opinion. You'll have persuaded me that your position is the better one."

Wait, before you reject this as a conservative rant. I am aware that it is lazy to dismiss contemporary art out of hand. Think yourself into a black mood about it and the next thing you know, some genuinely brilliant video installation will come along to prove you foolish. The art of today abounds in interest. But ... it also includes Prince, which has to be a point against it.

Let us examine this news story. Prince and his gallery, Gagosian, have lost a case in which he was accused of taking a fistful of photographs published by Cariou, adding various daft decorations to them, and selling them as his own original artworks. He and Gagosian made millions of dollars from these "Richard Prince" works, which may now have to be repaid.

None of this will damage Prince's art-world reputation. Appropriation is what he does. He was one of the original wave of American postmodern artists who questioned the very ideas of originality and authorship by taking images directly from popular culture with only minor reworkings. He revels in a piratical, bad-boy reputation, and his response to this court ruling will be the equivalent of a cheeky grin, or indeed an actual cheeky grin.

The sophisticates will shrug it off, sighing at the cultural illiteracy of judges who do not understand the tradition of the readymade going back to Duchamp. . . . But sometimes – especially when you have been looking at Manet – you have to allow yourself a grumble. Critics of contemporary art are wrong to dismiss it all sweepingly because of stories like this. But it is the kind of tale about today's artworld that should make even its biggest fan wonder for a moment if we are perhaps playing a big joke on ourselves for the entertainment of posterity.

I am troubled. Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing.

Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince's "appropriation" added ten million dollars worth of value to a pile of books. Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Thursday, March 24, 2011

Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009. Here is This is What it Became, one cut from ThruYOU:

[T]o hear some people talk about these things, none of this is "creative." It's all just "copying." In some cases it's outright "piracy." After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are "piracy" in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then "plays" it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves... or by taking the note originally played by someone else and doing something creative and amazing with it?

ScotusBlog interviews Ross Guberman, the author of Point Made: How to Write Like the Nation’s Top Advocates. Among the questions: What makes persuasive writing so hard? Guberman's response:

To succeed, you have to imagine a highly skeptical, highly impatient reader who will never care as much about your case or appeal as you do—and then ask yourself how you can somehow grab that reader’s attention and sustain it page after page.

I just don’t think that most advocates—legal or otherwise—imagine an actual person reading their work, let alone think about how to sway that person to their cause. That may be one of the reasons briefs used to be better when lawyers dictated them. Dictation is at least one step closer to actual communication.

You also have to channel whatever passion you feel into clarity and creativity, not into the anger and self-righteousness that drive so many motions and briefs.

Finally, the apparatus of brief-writing—the citations, record cites, defined terms, footnotes, and case discussions—can easily mask flaws in the prose and in the logic itself.

Wednesday, March 23, 2011

In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580, n. 14 (1994) Justice Souter, writing for the Court, observed -- in connection with the distinction the Court was drawing between "parody" and "satire" -- that a work that poses little or no risk of substituting in the market for the copyrighted work may be sufficiently transformative to constitute fair use even if it does not primarily take "parodic aim" at the copyrighted work:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Thursday, March 17, 2011

Have you ever known a Dead Head? Do you know any other band with such a devoted following? Did you know that it has been said that the Dead "may be the most profitable rock band in history." Do you think that's possible for a band that never had a #1 song or a #1 album and had only 2 songs ever that cracked the Top 40?

Maybe the money involved will make you believe:

Despite the death of its leader Jerry Garcia in 1995, Grateful Dead Productions continues to generate about $60 million a year in sales and licensing fees. Pretty good for a group that no longer exists.

Surely making that kind of money requires a fierce protection of one's intellectual property rights, right? Bono, after all, took to the pages of the New York Times to warn that without fierce protection of their copyrights the movie and television industries might suffer the fate of the music industry:

Caution! The only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files. The immutable laws of bandwidth tell us we’re just a few years away from being able to download an entire season of “24” in 24 seconds. Many will expect to get it free.

A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators — in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales like the least sympathetic among us — and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business.

We’re the post office, they tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content. Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product. Note to self: Don’t get over-rewarded rock stars on this bully pulpit, or famous actors; find the next Cole Porter, if he/she hasn’t already left to write jingles.

Of course one might ask Bono what exactly is the fate that has "befallen" the music industry. Some believe "[t]he music business didn’t die. And it isn’t dying."

Rather than prevent their audience from taping their concerts, as every other band did, the Dead set it free and encouraged tapers, hence sparking a revolution. You'd think giving their music away would have dampened their success; instead, the freebies propagated it. Even though people could get the Grateful Dead product for free, the band found itself playing in larger and larger stadiums as the fan base swelled and album sales accelerated: 19 gold albums, six platinum, and four multiplatinum.